RUDRAPPA CHETTY Vs. NARASIMHA CHETTY

JUDGEMENT

(1.) I consider that upon the facts of the situation with regard to which this interesting revision proceeding is filed, it is clear that the revision should be allowed both under O. 1, Rule 10 C. P. C. and under O. 8-A, Rule 1 C. P. C. This is upon very broad grounds of equity and the interests of injustice, as well as the strict applicability, to the facts, of the provisions that I have just cited. As regards the facts themselves, there is no dispute.

(2.) THE suit in the court below was instituted by a plaintiff (here, respondent 2), as an assignee of a mortgage extended by the revision petitioner on 7-11-1950. The simple defence of the revision petitioner to the action, as party defendant, was that he (mortgagor) had discharged the debt by payment to the original mortgagee (assignor), so that the debt was totally extinguished thereby, prior to the date of assignment. The revision petitioner to have been passed by the assignor, evidencing the discharge of the debt. The revision petitioner frankly conceded that the fact of this payment discharging the debt had not been engrossed on the document of mortgagee itself, and the document thereby formally discharged, but he relied on the collateral evidence of this receipt in proof of the discharge.

(3.) UNDER those circumstances, the defendant (revision petitioner) prayed, both under O. 1 Rule 10 C. P. C. and P. 8-A Rule 1 C. P. C. , which is a specific provision in madras State enabling a third party procedure to be adopted in such cases, that the assignor and original mortgage be added as party defendant to suit, as he was a necessary and property party and a party against whom the revision petitioner could claim contribution or indemnity. The learned District Munsif thought that these provisions did not apply to the situation and dismissed the petition. I may here add that the proceeding, denying the genuineness of the receipt, precisely as the plaintiff had denied it; both the plaintiff-respondent and the proposed party took up the position that the proposed party (assignor) need not be added either under O. 1 Rule 10 C. P. C. or under O. 8-A R. 1 C. P. C.